SUMMARY
Wright v. B&L Properties, Inc., 113 Wn. App. 450, 53 P.3d 1041 (2002)
Review denied , 149 Wn.2d 1014, 69 P.3d 876 (2003)
Facts
In May 1998, Susan and Donald Wright bought a newly constructed home from Robert Brokaw, a general contractor. One month later, the Wrights noticed a water leak and reported it to Brokaw who patched a small hole in the home’s foundation. The leak continued causing mold and mushrooms to grow inside the home. The Wrights also noticed that dirt next to the home was sliding down the hill.
Later that summer, the Wrights left several phone messages for Brokaw but he never returned their calls. The Wrights hired engineers who concluded that the home’s drainage system was severely inadequate and that the house could slide down the hill if repairs were not made. The Wrights made the recommended repairs at a cost of over $150,000.
In December 1998, the Wrights filed a complaint against Brokaw and hired a process server to personally serve him at the only address they had for him which appeared on his letterhead and on the closing documents for the home sale. The process server arrived at that address and found that it was a private mailbox located at a mini-storage facility. Brokaw had signed a United States Postal Service document designating the facility as his agent for mail delivery but the agreement prohibited the facility from accepting certified or registered mail.
The Wrights and the process server attempted, unsuccessfully, to find another address for Brokaw by:
- Calling directory assistance
- Checking with the Secretary of State
- Checking with the Department of Labor and Industries
- Searching social security records
- Searching voter registration records
- Searching traffic records and criminal records
On December 18 and 23, 1998, a process server left copies of the Wrights’ summons and complaint with the manager of the mini-storage facility. On December 28, 1998, the Wrights mailed via first class mail, postage prepaid, a copy of the summons and complaint to the same address. The mail was not returned but Brokaw never responded.
On March 5, 1999, a default judgment was entered against Brokaw and on June 15, 1999, a judgment in the amount of $151,970.68 was entered against him.
On August 17, 2001, Brokaw filed a motion to vacate the judgment claiming that service of process was improper. According to Brokaw he had left Seattle in October 1998 and did not return until 2000, spending that time on his yacht in the Caribbean. However, his principal place of business during that time was in King County and he continued to pay for moorage in Seattle. He did not submit a change of address to the post office but kept his address at the mini-storage and arranged to have his mail forwarded to a yacht chartering agent who then forwarded the mail to him. Nonetheless, he claimed that he had no actual notice of the lawsuit before the default judgment was entered.
Judicial History
The superior court commissioner denied Brokaw’s motion to vacate, ruling that service was proper. The superior court judge denied Brokaw’s motions to revise and reconsider. The Court of Appeals affirmed the judgment of the trial court. Brokaw appealed to the Washington Supreme Court but review was denied.
Specific Issues
- Did the Wrights use reasonable diligence in attempting to personally serve Brokaw? Yes
- Did service on Brokaw satisfy the requirements of the substitute service statute and due process? Yes
- Is a private mailbox at an office center to be construed as a “United States postal service post office box” as excluded in RCW 4.28.080(16)? No
Holdings
- Reasonable diligence requires the plaintiff to make honest and reasonable efforts to locate the defendant but does not require the plaintiff to employ all conceivable means to locate the defendant. Crystal, China & Gold, Ltd. v. Factoria Center Investments, Inc., 93 Wn. App. 606, 611, 969 P.2d 1093 (1999). The effort to locate need not be exhaustive.
- RCW 4.28.080(16) requires a plaintiff to use “reasonable diligence” before substitute service is permitted. Thereafter, the plaintiff must leave a copy of the summons with an appropriate person at the defendant’s usual mailing address and must also mail a copy to that same address. This method is reasonably calculated to provide notice and does not guarantee in all cases that the defendant will in fact receive actual notice. Woodruff v. Spence, 88 Wn. App. 565, 570-71, 945 P.2d 745 (1997). The constitutionality of substitute service lacking actual notice is long settled. Boss v. Irvine, 28 F.Supp. 983, 984 (W.D. Wash. 1939).
- When statutory language is clear and unequivocal, courts must assume “the Legislature meant exactly what it said and apply the statute as written.” Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997).
Reasoning
RCW 4.28.080(16) expressly excludes “a United States postal service post office box” from the definition of “usual mailing address” but it is undisputed that the post office box at the mini-storage was not a United States postal service post office box. Had the legislature intended that service be effective only at mailing addresses other than any post office box, it would have omitted the descriptive language “United States Postal Service” preceding “post office box.” By implication, service is proper on private post office boxes. Burrows v. City of League City, 985 F.Supp. 704, 706 (S.D. Tex. 1997).
As far as the requirement of “actual notice” is concerned, the United States Supreme Court has held that even service by publication, which it described as “an indirect and even a probably futile means of notification” is not unconstitutional. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950).
C4PSE Comment
The due diligence performed and reported by the plaintiff in this case is a good example of what a successful process server should complete in performing their diligence for a client. While not every possible avenue was exhausted, most of the major databases were considered.